Since the beginning of the sixth Parliament, the Independent Police Investigative Directorate (Ipid) has featured prominently on the parliamentary and public agenda. The noise surrounding the unlawful suspension of Robert McBride and the non-renewal of his contract as executive director of the body still echoed in the corridors.
In 2016, the Constitutional Court charged Parliament to amend the Ipid Act – which it did in 2020. For nearly two years, Ipid was rendered rudderless, having two acting executive directors appointed by the minister.
The long-awaited appointment of a permanent executive director received the ANC’s rushed parliamentary rubber stamp. And the Covid lockdown exposed the SA Police Service’s (SAPS’s) often brutal and heavy-handed enforcement of draconian regulations, placing Ipid in the spotlight.
Now, as the sixth Parliament begins to wind down, Ipid is back in the news thanks to the introduction of a controversial and unconstitutional amendment Bill which seeks to remove Parliament’s role in the process of appointing the executive director of Ipid.
It is alarming that the Minister of Police, on behalf of Cabinet, has knowingly introduced a Bill to Parliament which the Chief State Law Adviser refused to certify as constitutional, and which Parliamentary Legal Services – as well as an independent senior counsel – found to be unconstitutional.
I contend that the astounding arrogance and brazen determination of the minister to proceed with this unconstitutional Bill exposes his utter contempt for Parliament and a nefarious agenda to fully capture the SAPS.
Ipid was established in terms of Section 206 (6) of the Constitution to serve as an independent watchdog of police conduct – emphasis on “independent”.
In this discussion, it is important to understand the nature of Ipid’s independence and whether it can or should be strengthened. The ConCourt in Glenister II had the following to say about Ipid’s independence:
“What is required is not insulation from political accountability, but only insulation from a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit.”
I have maintained since 2019 that the current Ipid Act, which makes provision for the executive director of Ipid to be nominated by the minister – whose nomination must be either confirmed or rejected by the committee – insufficiently insulates Ipid “from a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit”.
I argue that the appointment of the current executive director in 2020 confirms this view.
Following the appointment of two acting executive directors as of January 2019, the minister finally brought his nominee for executive director to Parliament in July 2020.
The selection panel for this process was made up of the following “political actors”: Minister Stella Ndabeni-Abrahams; Minister Ronald Lamola and Deputy Minister Cassel Mathale; as well as a civilian representative, Alvin Rapea (Secretary of Police) – a position which is appointed by the Minister of Police.
Without so much as a sliver of scrutiny, the ANC in the committee moved swiftly to rubber-stamp the minister’s nominee and the triumphant minister marched on proudly – “stomach in, chest out”.
Even though the Ipid Act gives Parliament a role in the process, the Executive (and the ANC) demonstrated how it can manipulate the outcome through its disproportionate influence over that process.
The record reflects this, as well as the fact that Parliament abdicated its responsibility to conduct oversight by failing to properly scrutinise the process and the nominee.
This is a sign that Parliament’s role in the process needs to be expanded and strengthened, not weakened or removed – as the minister’s current Bill seeks to achieve.
I have argued strongly since 2019 that, in the interests of transparency, Parliament should play an even greater role than the current Act envisages, for reasons perfectly illustrated by the 2020 process.
It must be Parliament that appoints an independent panel of experts to shortlist applicants and Parliament that conducts the final interviews in order to transparently assess the suitability of the applicants.
Thereafter, Parliament must recommend a suitable candidate for the minister to appoint.
This would draw the appointment process out of the shadows and into the light for the public to scrutinise by placing Parliament at the beginning of the process, not at the end.
Instead of strengthening Parliament’s arm by sending the minister back to the drawing board, the ANC in Parliament has chosen to try to clean up his unconstitutional mess.
Based on the minister’s historical influence over the ANC members in the committee, there is a real risk that the committee may fail to adequately rectify the Bill.
The consequence of this would be to relegate Ipid from police watchdog to ministerial lapdog. DM